Defendant's Response to Plaintiffs' Motion for Reconsideration

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN MARLIN WILLIAMS, PAMELA WILLIAMS CARTHENS, JEROME THOMSON, PhD, BRENDA DEFORREST, LEVEN WEISS, J.D., MICHAEL D. BROWN, J.D., CORA WILLIAMS, and ANTHONY HILL, on behalf of themselves and all others similarly situated,

CASE NO. 17-10097 HON. LAURIE J. MICHELSON

Plaintiffs, vs.

FCA US LLC, Defendant.

AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam S. Akeel (P81328) 888 W. Big Beaver Road Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com adam@akeelvalentine.com PITT, MCGEHEE, PALMER & RIVERS, PC Michael L. Pitt (P24429) Megan A. Bonanni (P52079) Robert W. Palmer (P31704) 117 West Fourth Street, Suite 200 Royal Oak, MI 48067 Tel: 248-398-9800 mpitt@pittlawpc.com mbonanni@pittlawpc.com rpalmer@pittlawpc.com Attorneys for Plaintiffs

MILLER, CANFIELD, PADDOCK & STONE, P.L.C. Jerome R. Watson (P27082) M. Misbah Shahid (P73450) 150 W. Jefferson Ave., Suite 2500 Detroit, MI 48226 (313) 963-6420 Watson@millercanfield.com Shahid@millercanfield.com LITTLER MENDELSON, P.C. Daniel E. Turner (Ga. Bar No. 719330) Tasha K. Inegbenebor (Ga. Bar. No. 382905) Jacqueline Phipps Polito (Bar #2582690) 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com Admitted to the Eastern District of Michigan on June 23, 2011 jpolito@littler.com Admitted to the Eastern District of Michigan on May 18, 2017 tinegbenebor@littler.com Admitted to the Eastern District of Michigan on May 11, 2017 Attorneys for Defendant

_____________________________________________

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION FOR RECONSIDERATION

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TABLE OF CONTENTS PAGE STATEMENT OF ISSUES PRESENTED..................................................................................... i STATEMENT OF CONTROLLING/MOST APPROPRIATE AUTHORITY ............................ ii INTRODUCTION ......................................................................................................................... 1 STANDARD OF LAW.................................................................................................................. 1 ARGUMENT ................................................................................................................................. 2 I.

PLAINTIFFS’ CHALLENGE TO THE ARBITRABILITY OF TITLE VII CLAIMS IS MERITLESS............................................................................... 3

II.

PLAINTIFFS IMPROPERLY RAISE A NEW AND INCORRECT ARGUMENT ......................................................................................................... 7

III.

A.

Plaintiffs’ New Argument Is Untimely ...................................................... 8

B.

Plaintiffs’ Claims Are Clearly Within The Scope Of The 1995 EDRP ......................................................................................................... 9

THE 1995 EDRP EXPRESSLY PROHIBITS CLASS ARBITRATION UNDER THE SUPREME COURT’S HOLDING IN STOLT-NIELSEN ........... 13 A.

Standards For Contract Interpretation In Michigan ................................. 14

B.

Stolt-Nielsen And Crockett Are Binding and Applicable To The Interpretation Of The 1995 EDPR; Oxford Is Neither ............................. 14

C.

The Pluralization Of Certain Words Does Not Signify An Intention To Agree To Class Arbitration ................................................................ 17

D.

The Surplusage Canon Is Inapplicable .................................................... 18

CONCLUSION ............................................................................................................................ 20

i.

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TABLE OF AUTHORITIES Page(s) Cases In re A.P. Liquidating Co., 421 F. App’x 583 (6th Cir. 2011) ............................................................................................19 Am. Meat Inst. v. Pridgeon, 724 F.2d 45 (6th Cir.1984) ........................................................................................................9 Bacon v. Honda of Am., Mfg., Inc., 370 F.3d 565 (6th Cir. 2004) .................................................................................................5, 6 Carter v. Robinson, 211 F.R.D. 549 (E.D. Mich. 2003) ............................................................................................2 Celestine v. Petroleos de Venezuela SA, 266 F.3d 343 (5th Cir. 2001) .....................................................................................................5 Chin v. Port Authority of New York, 685 F.3d 135 (2d Cir 2012)........................................................................................................5 China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018) ...............................................................................................................7 Deister v. AAA Auto Club of Mich., 2015 WL 1885576 (E.D. Mich. Apr. 24, 2015) (Michelson, J.)................................................4 DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015) ...............................................................................................................14 Dobbelaere v. Auto-Owners Ins. Co., 275 Mich. App. 527 (2007)......................................................................................................14 Doe v. Boland, 698 F.3d 877 (6th Cir. 2012) ...................................................................................................19 Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018) ...................................................................................................... passim Gilmer v. Interstate, 500 U.S. 20 (1991) .....................................................................................................................6 Gowens v. Tidwell, 2012 WL 4475352 (E.D. Mich. Sept. 27, 2012) ........................................................................8

i.

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Harris v. River Rouge Hous. Comm’n, 2013 WL 1688478 (E.D. Mich. Apr. 18, 2013) .........................................................................1 Hawkins v. Genesys Health Sys., 704 F. Supp. 2d 688 (E.D. Mich. 2010).....................................................................................2 Hixon v. Donahoe, 2015 WL 2405973 (E.D. Mich. May 19, 2015).......................................................................12 James v. Metro. Gov’t of Nashville, 243 F. App’x 74 (6th Cir. 2007) ..............................................................................................12 Javitch v. First Union Sec., Inc., 315 F.3d 619 (6th Cir. 2003) ...................................................................................................10 Lloyd v. J.P. Morgan Chase & Co., 791 F.3d 265 (2d Cir. 2015).....................................................................................................18 Maiberger v. City of Livonia, 724 F. Supp. 2d 759 (E.D. Mich. 2010).....................................................................................2 Merriweather v. Hoffner, 2017 WL 127707 (E.D. Mich. Jan. 13, 2017)............................................................................1 Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir. 2003) .....................................................................................................7 Murphy-Goodrich v. City of Dearborn, 2015 WL 143921 (E.D. Mich. Jan. 12, 2015) (Michelson, J.) ..................................................4 Omnicom of Michigan v. Giannetti Inv. Co., 221 Mich. App. 341 (Mich. Ct. App. 1997) ............................................................................11 Oxford Health Plans LLC v. Sutter, 569 U.S. 564 (2013) .....................................................................................................14, 15, 16 Parisi v. Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013).......................................................................................................5 Perez v. Globe Airport Sec. Servs., Inc., 253 F.3d 1280 (11th Cir. 2001) .................................................................................................7 Perez v. Globe Airport Sec. Servs., Inc., 294 F.3d 1275 (11th Cir. 2002) .................................................................................................7 Phipps v. Wal-Mart Stores, Inc., 792 F.3d 637 (6th Cir. 2005) .................................................................................................6, 7

ii.

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Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Michigan, 654 F.3d 618 (6th Cir. 2011) ...................................................................................................13 Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, 734 F.3d 594 (6th Cir. 2013) .......................................................................................... passim Rhode Island Comm’n v. Graul, 120 F. Supp. 3d 110 (D.R.I. 2015).............................................................................................5 Richmond Health Facilities v. Nichols, 811 F.3d 192 (6th Cir. 2016) ...................................................................................................10 Shah v. NXP Semiconductors USA, Inc., 507 F. App’x 483 (6th Cir. 2012) ..............................................................................................9 Smith ex rel. Smith v. Mount Pleasant Pub. Sch., 298 F. Supp. 2d 636 (E.D. Mich. 2003).....................................................................................8 Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) ......................................................................................................... passim Stout v. J.D. Byrider, 228 F.3d 709 (6th Cir. 2000) ...................................................................................................10 TMW Enterprises, Inc. v. Fed. Ins. Co., 619 F.3d 574 (6th Cir. 2010) ...................................................................................................19 United States v. $525,695.24, Seized From JPMorgan Chase Bank Inv. Account #xxxxxxxx, 869 F.3d 429 (6th Cir. 2017) ...................................................................................9 Willacy v. Marotta, 683 F. App’x 468 (6th Cir. 2017) ............................................................................................10 Witzke v. Hiller, 972 F. Supp. 426 (E.D. Mich.1997)...........................................................................................2 Wright v. Nat’l Archives & Records Servs., 609 F.2d 702 (4th Cir. 1979) .....................................................................................................5 Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 (1998) ...................................................................................................................10

iii.

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STATEMENT OF ISSUES PRESENTED Whether Plaintiffs have demonstrated a “palpable defect” in this Court’s Opinion and Order (Dkt. 37) by which the Court and the parties have been misled and have also demonstrated that correcting the palpable defect will result in a different disposition of the case (E.D. Mich. LR 7.1(h)(3))?

FCA US LLC’s Answer: No. Plaintiffs’ Answer: Yes. The Court Should Answer: No.

i

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STATEMENT OF CONTROLLING/MOST APPROPRIATE AUTHORITY The controlling or most appropriate authority for the arguments raised in Plaintiffs’ Motion for Reconsideration includes: • Chin v. Port Authority of New York, 685 F.3d 135 (2d Cir 2012).

• Deister v. AAA Auto Club of Mich., 2015 WL 1885576 (E.D. Mich. Apr. 24, 2015).

• Doe v. Boland, 698 F.3d 877 (6th Cir. 2012).

• Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018).

• Gowens v. Tidwell, 2012 WL 4475352 (E.D. Mich. Sept. 27, 2012).

• Maiberger v. City of Livonia, 724 F. Supp. 2d 759 (E.D. Mich. 2010).

• Merriweather v. Hoffner, 2017 WL 127707 (E.D. Mich. Jan. 13, 2017).

• Parisi v. Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013).

• Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, 734 F.3d 594 (6th Cir. 2013).

• Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010).

• Willacy v. Marotta, 683 F. App’x 468 (6th Cir. 2017).

ii

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INTRODUCTION On May 24, 2018, this Court issued a detailed 19-page Opinion and Order granting in part and denying in part FCA US LLC’s (“FCA US”) Motion to Compel Arbitration; Motion to Dismiss; and/or Motion to Strike Class Allegations in the Second Amended Complaint (“SAC”). Dkt. 37. Plaintiffs’ Motion for Reconsideration fails to meet the stringent standards required for reconsideration.

Dkt. 39. First, Plaintiffs make a frivolous legal argument concerning arbitrability that is contradicted by years of precedent and that relies solely on language in a recent U.S. Supreme Court dissent, which does not support their argument in any event. Second, they raise a variety of new arguments regarding the meaning of the arbitration agreements at issue, which they could have, but failed to make previously. As courts routinely hold, motions for reconsideration are not vehicles for parties, having lost, to try out new arguments that were available to them all along. Plaintiffs’ Motion, which fails to demonstrate any “palpable defect” in this Court’s Order, should be denied.

STANDARD OF LAW As courts have repeatedly held, a motion to reconsider is “an extraordinary remedy and should be granted sparingly.” Merriweather v. Hoffner, 2017 WL 127707, at *1 (E.D. Mich. Jan. 13, 2017) (internal quotation marks and citation omitted); accord Harris v. River Rouge Hous. Comm’n, 2013 WL 1688478, at *1

1.

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(E.D. Mich. Apr. 18, 2013). 1 Accordingly, “[i]t is an exception to the norm for the Court to grant a motion for reconsideration.” Maiberger v. City of Livonia, 724 F. Supp. 2d 759, 780 (E.D. Mich. 2010). “Courts will generally entertain a motion for reconsideration only when there has been an intervening change in the controlling law, when new evidence has become available, or when there is a need to correct a clear error or prevent manifest injustice.” Carter v. Robinson, 211 F.R.D. 549, 550 (E.D. Mich. 2003) (internal quotation marks and citation omitted).

E.D. Mich. LR 7.1(h)(3) establishes that motions for reconsideration “that merely present the same issues ruled upon by the Court, either expressly or by reasonable implication” must be denied. In addition, “[t]he movant must not only demonstrate a palpable defect by which the Court and the parties … have been misled but also show that correcting the defect will result in a different disposition of the case.” Id.; Hawkins v. Genesys Health Sys., 704 F. Supp. 2d 688, 709 (E.D. Mich. 2010). “A ‘palpable defect’ is a defect that is obvious, clear, unmistakable, manifest or plain.” Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich.1997).

Plaintiffs have not come close to meeting these very high standards.

ARGUMENT Plaintiffs assert three legally and factually incorrect reasons this Court should reconsider its ruling: (1) Plaintiffs erroneously cite the dissent in the United 1

All unpublished cases cited are attached in alphabetical order by case name at Exhibit 1.

2.

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States Supreme Court’s recent decision upholding arbitration agreements in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018) (“Epic Systems”) and raise an argument against the arbitrability of Title VII claims that courts have repeatedly rejected; (2) Plaintiffs offer a new challenge to the scope of the 1995 EDRP that could have been (but was not) raised previously and that is plainly incorrect in any event (Dkt. 37 at 14-23); and (3) in yet another argument that Plaintiffs could have made in response to the original motion, they falsely claim that the 1995 EDRP permits class arbitration (id. at 27-35). Each argument fails.

I.

PLAINTIFFS’ CHALLENGE TO THE ARBITRABILITY OF TITLE VII CLAIMS IS MERITLESS This Court’s Order correctly applied the Supreme Court’s recent decision in

Epic Systems conclusively resolving, in FCA US’ favor, that an employer can enforce an arbitration agreement that includes a class waiver. The Order further correctly concluded that, pursuant to Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), an arbitration agreement that is silent as to the pursuit of class action claims does not allow such claims to be pursued in arbitration. The Court specifically rejected Plaintiffs’ argument that class waivers are “unenforceable because they do not allow for the effective vindication of rights under Title VII.” Dkt. 37 at 15-16. Plaintiffs’ effort to rehash their rejected

3.

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arguments is both contrary to Federal Court rules and meritless. 2 As this Court has held, courts will not grant “motions for rehearing or reconsideration which merely present the same issues ruled upon by the Court.”

Deister v. AAA Auto Club of Mich., 2015 WL 1885576, at *1, *3 (E.D. Mich. Apr. 24, 2015) (Michelson, J.) (denying a reconsideration motion because “Deister has not pointed to any evidence that this Court has not already thoroughly addressed.”); accord Murphy-Goodrich v. City of Dearborn, 2015 WL 143921, at *2 (E.D. Mich. Jan. 12, 2015) (Michelson, J.).

Plaintiffs’ assertion that they have a substantive right to bring a pattern or practice claim in court is frivolous. First, Plaintiffs have not asserted such a claim and, in fact, have conceded they cannot pursue such a claim in this case. See Cerjanec v. FCA US LLC, No. 2:17-cv-10619-LJM-EAS, Dkt. 31 at 77 (Hearing on FCA US’ Motion to Dismiss SAC). Plaintiffs’ SAC asserts only individual intentional discrimination claims.

2

That Epic Systems involved an FLSA claim in no way impacts its applicability to this case. Contrary to Plaintiffs’ unsupported assertions, Epic Systems contains no language holding or otherwise suggesting that Title VII disparate impact claims are somehow to be treated differently or excluded from Epic Systems’ broad holding.

Instead, Epic Systems identifies the precise reason this Court correctly ruled as it did, and why Plaintiffs’ Motion for Reconsideration requires denial – “[b]y challenging the agreements precisely because they require individualized arbitration instead of class or collective proceedings, the employees seek to interfere with one of these [the FAA’s] fundamental attributes.” 138 S.Ct. at 1616.

Congress has instructed in the FAA that “arbitration agreements providing for individualized proceedings must be enforced, and neither the FAA’s savings clause nor the NLRA suggests otherwise.” Id. 4.

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Moreover, courts have unanimously held that pattern or practice is a method of proof and there is no substantive right to bring such a claim. In Parisi v.

Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013), the Second Circuit enforced an arbitration agreement rejecting plaintiff’s argument that she had a substantive right to assert pattern or practice, the same arguments Plaintiffs make here. The court ruled that “in Title VII jurisprudence ‘pattern-or-practice’ simply refers to a method of proof and does not constitute a ‘freestanding cause of action,’” and thus concluded “we see no reason to deviate from the liberal federal policy in favor of arbitration….” Id. at 487-88; see also Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 355 (5th Cir. 2001) (“A pattern or practice case is not a separate and free-standing cause of action … but is really merely another method by which disparate treatment can be shown.”); Bacon v. Honda of Am., Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004); Chin v. Port Authority of New York, 685 F.3d 135, 14748 (2d Cir. 2012).

Similarly, just as with pattern or practice, a disparate impact claim is not a substantive right but merely a theory of discrimination. Wright v. Nat’l Archives & Records Servs., 609 F.2d 702, 711 (4th Cir. 1979); Rhode Island Comm’n v. Graul, 120 F. Supp. 3d 110, 118 (D.R.I. 2015) (“Although disparate treatment and disparate impact are theories of liability, they are not independent causes of action.”).

Plaintiffs’ claim that they are unable to make disparate impact 5.

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arguments in arbitration is simply wrong. Individual plaintiffs can and do make disparate impact claims, and nothing in the 1995 EDRP would prevent Plaintiffs from doing so. This is confirmed by the very decision Plaintiffs cite for their erroneous arguments. See Bacon, 370 F.3d 565 at 577 (holding that “an individual plaintiff arguing a disparate impact theory must show that the challenged policy directly disadvantaged him in some fashion”) (citation omitted).

Plaintiffs’ attempt to rely on the dissenting opinion in Epic Systems as new law is baseless.

A dissent does not create binding new law on which

reconsideration can be granted.

The majority opinion in Epic Systems fully

supports the enforceability of the 1995 EDRP and the Supreme Court has long held that statutory employment discrimination claims may properly be arbitrated. See, e.g., Gilmer v. Interstate, 500 U.S. 20 (1991). Moreover, Plaintiffs’ reading of Justice Ginsburg’s dissent is also erroneous. She did not assert, as Plaintiffs claim, that “class waivers do not apply to disparate impact claims under Title VII.” Dkt. 39 at 16 n.2. Rather, she offered her view that disparate impact allegations could be brought in individual arbitrations, which is correct. Epic Systems, 138 S.Ct. at 1648. (“I do not read the Court’s opinion to place in jeopardy discrimination complaints asserting disparate-impact and pattern-or-practice claims that call for proof on a group-wide basis.”)

Nor does Plaintiffs’ citation to Phipps v. Wal-Mart Stores, Inc., 792 F.3d 6.

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637, 643 (6th Cir. 2005), assist them. First, that decision has since been abrogated

by China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018). Second, Phipps merely held that individual plaintiffs were precluded from establishing a discrimination claim using the pattern or practice method of proof. 792 F.3d at 643. Nothing in Phipps stands for the proposition that pursuing disparate impact claims on a class basis is a substantive right that cannot be abrogated by a contractual obligation to arbitrate claims. Similarly, Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 673 (6th Cir. 2003) has no bearing here. It dealt with whether a fee-splitting provision and limits on damages in an arbitration agreement could be enforced. In the Sixth Circuit’s judgment, those draconian limitations on monetary remedies made the arbitration agreement unenforceable. Id. at 670-72. 3 None of those limitations, however, are present in the arbitration agreements this Court correctly enforced. This Court correctly rejected Plaintiffs’ arguments and applied Epic Systems and Stolt-Nielsen.

II.

PLAINTIFFS IMPROPERLY RAISE A NEW AND INCORRECT ARGUMENT Despite ample opportunity to raise this argument in their response to FCA

3

Plaintiffs’ reliance on Perez v. Globe Airport Sec. Servs., Inc., 253 F.3d 1280 (11th Cir. 2001) fails for the same reason. There, the Court concluded the arbitration agreement was unenforceable because it limited the plaintiff’s potential monetary remedies. It did not conclude – as Plaintiffs suggest – that the agreement was unenforceable because it precluded class disparate impact claims. Further, Perez has since been vacated. Perez v. Globe Airport Sec. Servs., Inc., 294 F.3d 1275 (11th Cir. 2002).

7.

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US’ May 15, 2017 Motion to Compel, Plaintiffs now, for the first time, assert that their claims are outside the scope of the 1995 EDRP.

Plaintiffs offer no

explanation why they could not have done so in their response to FCA US’ Motion to Compel (filed over one year ago on June 26, 2017), and, thus, their argument is untimely and has been waived. Nevertheless, if this Court were to consider the issue, which it should not, even under Plaintiffs’ improperly narrow reading of the 1995 EDRP, the claims asserted in the SAC (both individual and class-wide) expressly fall within the scope of the 1995 EDRP and must be arbitrated.

A.

Plaintiffs’ New Argument Is Untimely

Plaintiffs had the 1995 EDRP documents prior to filing their Response to FCA US’ Motion to Compel. As such, they could have argued the 1995 EDRP did not apply to their claims, but failed to do so. See generally Dkt. 25 at 32-37 (not disputing that Plaintiffs’ claims are covered). Thus, this Court was entirely correct when it explained that “the parties do not appear to dispute that the policies cover Plaintiffs’ claims.” Dkt. 37 at 8.4 “A motion for reconsideration is not a vehicle to . . . proffer new arguments or evidence that the movant could have presented earlier.” Gowens v. Tidwell, 2012 WL 4475352, at *1 (E.D. Mich. Sept. 27, 2012) (citation omitted); Smith ex rel. Smith v. Mount Pleasant Pub. Sch., 298 F. Supp.

4

Significantly, in response to this Court’s observation, Plaintiffs do not point to any prior claim in its brief where they challenged the scope of the 1995 EDRP. See generally Dkt. 39 at 23-26.

8.

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2d 636, 637 (E.D. Mich. 2003) (a motion for reconsideration “is not properly used as a vehicle to . . . advance positions that could have been argued earlier but were not”); Shah v. NXP Semiconductors USA, Inc., 507 F. App’x 483, 495 (6th Cir. 2012) (“[A] party may not introduce evidence for the first time in a motion for reconsideration where that evidence could have been presented earlier.”).

5

Because Plaintiffs failed to raise this issue in their response to FCA US’ Motion to Compel a year ago, it must be rejected now.

B.

Plaintiffs’ Claims Are Clearly Within The Scope Of The 1995 EDRP

Contrary to Plaintiffs’ new allegations, the 1995 EDRP expressly covers the claims asserted in Plaintiffs’ SAC. The 1995 EDRP “‘covers all legal issues related to: Permanent separation of employment, Layoff, Demotion (a Salary Band reduction), Handicap accommodation, [and] Sexual harassment.’” Dkt. 19-4 at 12 (emphasis added). Courts repeatedly hold that any doubt about the scope of an arbitration clause should be resolved in favor of arbitration, because “[w]henever ‘the contract contains an arbitration clause,’ whether broad or narrow, ‘there is a The Sixth Circuit correspondingly holds that such issues are waived for purposes of appeal by virtue of not being timely raised. See, e.g., United States v. $525,695.24, Seized From JPMorgan Chase Bank Inv. Account #xxxxxxxx, 869 F.3d 429, 433 n.2 (6th Cir. 2017) (“Generally, we do not consider arguments raised for the first time in a motion for reconsideration, and we decline to do so here.” (citations omitted)); Am. Meat Inst. v. Pridgeon, 724 F.2d 45, 47 (6th Cir. 1984) (issue raised for the first time in motion to reconsider was untimely and thus waived on appeal).

5

9.

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presumption of arbitrability.’” Willacy v. Marotta, 683 F. App’x 468, 471 (6th Cir. 2017) (quoting AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650, (1986)); see also Stout v. J.D. Byrider, 228 F.3d 709, 715 (6th Cir. 2000) (“It is settled authority that doubt regarding the applicability of an arbitration clause should be resolved in favor of arbitration.”).

Even under their overly narrow construction of the 1995 EDRP, Plaintiffs’ individual and class claims would be arbitrable. 6 Only two Plaintiffs, Marlin Williams and Cora Williams, assert individual claims under Title VII and the ELCRA. Cora Williams asserts wrongful termination and both individuals allege retaliation (specifically including allegations of retaliatory termination). 7 Dkt. 8 ¶¶ 113-61. There can be no dispute that these claims are covered under any version of the EDRP. Plaintiffs’ argument (without any factual support) that this Court Plaintiffs’ reliance on Javitch v. First Union Sec., Inc., 315 F.3d 619, 624 (6th Cir. 2003), is misplaced because Javitch in fact affirmed the general rule that “[a]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.”

Id. (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)). The additional authority relied on by Plaintiffs is similarly inapposite. See, e.g., Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 79, 82 (1998) (ADA case involving collective bargaining agreements and merely noting that collective bargaining agreements “must be particularly clear” because “union waiver of employee rights . . . must be clear and unmistakable”); Richmond Health Facilities v. Nichols, 811 F.3d 192, 195 (6th Cir. 2016) (holding that, under Kentucky state contract law, defendant was not required to arbitrate wrongful death claim because the decedent party to the contract had no cognizable legal rights in the wrongful death claim following his death).

7 None of the remaining Plaintiffs assert individual allegations in the SAC. 6

10.

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should infer that more recent versions of the EDRP support an interpretation that the 1995 EDRP does not include Plaintiffs’ claims is groundless. In fact, even if this Court were to review the agreements together as Plaintiffs argue, it would make no difference. Plaintiffs do not dispute that the more recent versions of the EDRP would cover their claims (see generally Dkt. 39 at 24 n.6, 25.), and when parties have entered into two agreements that arguably differ, “the later document supersedes and rescinds the earlier agreement” where “the second agreement contains terms that are inconsistent with those of the prior agreement.”

See

Omnicom of Michigan v. Giannetti Inv. Co., 221 Mich. App. 341, 347, (Mich. Ct. App. 1997) (emphasis added).

In fact, there is no inconsistency here. The 1995 EDRP as well as more recent versions of the EDRP consistently cover all of the claims Plaintiffs raised in the SAC.

This untimely argument is meritless and presents no basis for

reconsideration of the Court’s correct rulings on FCA US’ Motion to Compel.

Similarly, the class allegations in the SAC raise employment-related complaints that fall squarely within the terms of the 1995 EDRP. Plaintiffs allege that FCA US’ use of the challenged evaluation practice resulted in the putative class members (1) losing pay raises, bonuses, and/or promotional potential, and (2) disproportionately being subject to demotion, or being placed on PIP under threat of termination.” Dkt. 8 ¶ 94. The SAC further alleges that they were “subjected to 11.

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less retention” (in other words “permanent separation of employment” or “layoffs”) than other groups of employees as well as “reduced compensation” and benefits (in other words “demotion” or change in “salary band”). Dkt. 8 ¶¶ 74, 82.

In sum, Plaintiffs’ allegations regarding the PLM Process clearly raise factual and legal issues covered by the 1995 EDRP. Further, Plaintiffs’ entire argument is predicated on the absurd notion that their challenge to the PLM ratings is not a challenge to an employment action. See Dkt. 39 at 23-26. Any legally cognizable claims based on the PLM Process are necessarily dependent on related, allegedly adverse employment actions.

A

performance evaluation system, such as the PLM, is not by itself an adverse employment action. See James v. Metro. Gov’t of Nashville, 243 F. App’x 74, 79 (6th Cir. 2007) (holding that the bad employment evaluations of the plaintiff, in addition to its denial of her request for a lateral transfer and imposition of cataloguing quotas, did not constitute adverse employment actions in retaliation for the plaintiff’s filing of EEOC charges); Hixon v. Donahoe, 2015 WL 2405973, at *6 (E.D. Mich. May 19, 2015) (holding that performance rating did not constitute an adverse employment action).

By necessity, Plaintiffs are asserting legal issues relating to claims covered by the 1995 EDRP because they assert that the PLM ratings they received subsequently led to covered adverse employment actions. The 1995 EDRP further 12.

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underscores that “[t]he scope of this EDRP extends to all eligible disputes whether based on federal, state or local law including breach of contract, discrimination, and retaliation claims.” Dkt. 19-4 at 5 (emphasis added). Plaintiffs specifically allege both “wrongful termination” and “threat of termination” in the Complaint (i.e. “permanent separation of employment”, “layoff”). See Dkt. 8 at 29, 33.

Accordingly, because Plaintiffs’ SAC asserts claims “related to” those specifically enumerated in the 1995 EDRP, this Court correctly held that Plaintiffs’ claims are subject to arbitration.8 III.

THE 1995 EDRP EXPRESSLY PROHIBITS CLASS ARBITRATION UNDER THE SUPREME COURT’S HOLDING IN STOLT-NIELSEN This Court correctly applied the standards of interpretation articulated in

Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) and Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, 734 F.3d 594 (6th Cir. 2013) (“Crockett”), and barred Plaintiffs from seeking class-wide arbitration under both the 1995 and 2013 EDRP agreements. Plaintiffs’ rehash of their prior arguments 8

Notably, Plaintiffs’ erroneous interpretation of the 1995 EDRP would require a complex individualized assessment of each class member’s claims to determine whether the claim is subject to arbitration. See Pipefitters Local 636 Ins. Fund v.

Blue Cross Blue Shield of Michigan, 654 F.3d 618, 629 (6th Cir. 2011) (reversing certification because “despite common issues, the issues actually certified would require individualized attention”). Because the 1995 EDRP provides that it “is the exclusive final and binding method to resolve eligible employment disputes,” the only way to evaluate the claims each putative class member asserts (e.g., a demotion claim based on alleged discrimination) would be to individually investigate each person’s claims. See Dkt. 19-4 at 5. This inefficient and individualized process is the antithesis of class treatment.

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should be rejected.

A.

Standards For Contract Interpretation In Michigan

“[T]he question whether an arbitration agreement permits classwide arbitration is a gateway matter, which is reserved ‘for judicial determination unless the parties clearly and unmistakably provide otherwise.’” Crockett, 734 F.3d at 599 (citation omitted).

Plaintiffs correctly assert that “the interpretation of a

contract is ordinarily a matter of state law.” DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 468 (2015). Under Michigan law, “[t]he fundamental goal of contract interpretation is to determine and enforce the parties’ intent by reading the agreement as a whole and applying the plain language used by the parties to reach their agreement.” Dobbelaere v. Auto-Owners Ins. Co., 275 Mich. App. 527, 529 (2007).

B.

Stolt-Nielsen And Crockett Are Binding And Applicable To The Interpretation Of The 1995 EDPR; Oxford Is Neither

Stolt-Nielsen is the leading authority on arbitration clause interpretation as it pertains to the availability of class arbitration, and it instructs as follows: Whether enforcing an agreement to arbitrate or construing an arbitration clause, courts and arbitrators must “give effect to the contractual rights and expectations of the parties.” In this endeavor, “as with any other contract, the parties’ intentions control.” This is because an arbitrator derives his or her powers from the parties’ agreement to forgo the legal process and submit their disputes to private dispute resolution. . . . From these principles, it follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that 14.

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the party agreed to do so.

Stolt-Nielsen, 559 U.S. at 682, 684 (internal citations omitted; emphasis added).

Applying this formula, Stolt-Nielsen held that, when an arbitration clause is silent on the issue of class-arbitration, a court cannot infer an “implicit agreement to authorize class-action arbitration . . . solely from the fact of the parties’ agreement to arbitrate.” 559 U.S. at 685. In the Sixth Circuit, this holding was further reinforced by Crockett. In Crockett, the court concluded once again that, when an arbitration agreement is silent on the issue of class-arbitration, it cannot be construed as an implicit agreement for class-arbitration. Crockett, 734 F.3d at 599 (“[G]iven the total absence of any reference to classwide arbitration in this clause, the agreement here can just as easily be read to speak only to issues related to bilateral arbitration.”).

Notwithstanding the obvious applicability of Stolt-

Nielsen and Crockett to the present action, Plaintiffs try to draw some significance from an inapplicable decision, in Oxford Health Plans LLC v. Sutter, 569 U.S. 564 (2013).

In Oxford, a number of physicians sought class arbitration to adjudicate breach of contract claims based on a single-sentence arbitration clause: No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the rules of the American Arbitration Association with one arbitrator.

569 U.S. at 566.

The arbitrator found that the parties had agreed to class 15.

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arbitration. On appeal, the Supreme Court refused to overturn the arbitrator’s decision because the FAA requires deference to such decisions. The Supreme Court found that Oxford had not met its heavy burden of demonstrating that the arbitrator had exceeded his powers or imperfectly executed an award under 9 U.S.C. § 10(a)(4).

Oxford, 569 U.S. at 569.

To demonstrate error under §

10(a)(4), “[i]t is not enough . . . to show that the [arbitrator] committed an error— or even a serious error. . . . So long as the arbitrator was ‘arguably construing’ the contract—which this one was—a court may not correct his mistakes under § 10(a)(4).” Id. at 569-72 (citations omitted). The Court did not endorse or agree with the arbitrator’s decision; it merely held that the arbitrator had not exceeded his powers. Id. at 573. Importantly, the Oxford Court did not determine whether the arbitrator’s interpretation of the clause was correct. Id. at 570.

Oxford gives no guidance on the correct interpretation of an arbitration clause but merely reinforces the protection an arbitrator’s decision is given under § 10(a)(4). Plaintiffs have failed to demonstrate why Oxford should change this Court’s interpretation.

If anything, Oxford undermines Plaintiffs’ position,

because the arbitration agreement at issue there was far different from the 1995 EDRP.

Indeed, the 1995 EDRP contains an entire section addressing the

judiciary’s role in the EDRP Arbitration Procedure entitled “Effect of Court Decision.” Dkt. 19-4.

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C.

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The Pluralization Of Certain Words Does Not Signify An Intention To Agree To Class Arbitration

Plaintiffs’ argument that the pluralization of words like “employee(s)” or “dispute(s)” and use of the word “all” in a couple of places in the EDRP could constitute an implicit agreement to class-wide arbitration is groundless and directly contrary to Stolt-Nielsen, which rejected arguments by implication “because classaction arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it….”

Plaintiffs point to the “Scope” clause in the 1995 EDRP, noting that it applies to “All” U.S. Chrysler employees (contrasting it with the 2013 EDRP, which refers to the singular variation: “employee”), and the “Exclusive Remedy” clause, which “extends to all eligible disputes whether based on federal, state or local law including breach of contract, discrimination or retaliation claims.” See Dkt. 39 at 29, 31; Dkt. 19-4. Plaintiffs also point to Crockett, where, as mentioned above, the court denied class-arbitration for the following reasons.

The principal reason to conclude that this arbitration clause does not authorize classwide arbitration is that the clause nowhere mentions it.

A second reason, as the district court correctly observed, is that the clause limits its scope to claims “arising from or in connection with this Order,” as opposed to other customers’ orders.

Crockett, 734 F.3d at 599 (6th Cir. 2013) (emphasis added).

Plaintiffs argue that this so-called “second reason” supports their proposition that the agreement at issue was intended to include class arbitration. However, 17.

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Plaintiffs conveniently overlook the EDRP Process sections which repeatedly refer to “the employee” or “an employee.” Dkt. 19-4 at 3. Moreover, as it relates to pursuing arbitration with the American Arbitration Association (“AAA”) under the EDRP Arbitration Procedures, the 1995 EDRP uses the singular noun “employee.”

Id. at 8-9. The EDRP Arbitration Procedures are rife with examples of singular nouns, confirming that the arbitration procedures were geared toward the individual, signifying an intention by both parties to forgo class arbitration.

Accordingly, pursuant to Stolt-Nielsen and Crockett, Plaintiffs have not shown that the Court’s ruling contains a palpable defect.

D.

The Surplusage Canon Is Inapplicable

In yet another argument that they could have made in their Response to FCA US’ Motion to Compel filed over one year ago, Plaintiffs argue at length that the “surplusage canon” applies here. Plaintiffs assert nonsensically that a holding by this Court that the 1995 EDRP (which does not contain an express waiver of class arbitration) does not authorize class arbitration somehow would render the express class waiver in the 2013 EDRP surplus. This is a complete misconception of the surplusage canon.

First, and most fundamentally, the surplusage canon concerns application of language within a single document. It does not apply when considering two separate documents. Lloyd v. J.P. Morgan Chase & Co., 791 F.3d 265, 272-73 (2d 18.

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Cir. 2015) (“the surplusage canon does not apply because the [first agreement] and [the accompanying form] are not provisions of a single contract”).

Moreover, “[t]he presumption against surplusage does not apply to doublets—two ways of saying the same thing that reinforce its meaning.” Doe v.

Boland, 698 F.3d 877, 881 (6th Cir. 2012).

Companies frequently alter and

duplicate wording in employment documents to place emphasis on certain points.

See, e.g., In re A.P. Liquidating Co., 421 F. App’x 583, 590 (6th Cir. 2011) (holding that surplusage in a contract involving two telecommunication companies “ha[d] an obvious purpose in the telecommunications industry”). In this case, FCA US reinforced the obligation to arbitrate as individuals in the 2013 EDRP. “The canon is one among many tools for dealing with ambiguity, not a tool for creating ambiguity in the first place.” TMW Enterprises, Inc. v. Fed. Ins. Co., 619 F.3d 574, 578 (6th Cir. 2010) (emphasis in original). In this case, Plaintiffs seek to use the surplusage canon to create ambiguity where none exists.

Finally, Plaintiffs incorrectly try to draw some significance from the fact that AAA will administer class arbitration in cases in which parties are found to have agreed to class arbitration. Plaintiffs take, out of context, a quote from AAA rules which suggests that AAA will accept a demand for class arbitration where the arbitration agreement at issue is silent as to class actions and an arbitrator decides that the parties agreed to class arbitration. Dkt. 39-2 at 2. Most importantly, and 19.

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as the Court in Crockett noted, AAA expressly states in its Supplementary Rules that “one should ‘not consider the existence of these Supplementary Rules, or any other AAA rules, to be a factor either in favor of or against permitting the arbitration to proceed on a class basis.’” Crockett, 734 F.3d at 599-600.9 CONCLUSION WHEREFORE, FCA US respectfully requests that Plaintiffs’ Motion for Reconsideration (Dkt. 39) be DENIED. Dated: July 3, 2018

Respectfully submitted,

Jerome R. Watson (P27082) Miller, Canfield, Paddock and Stone, P.L.C. watson@millercanfield.com P27082

/s/ Daniel E. Turner Daniel E. Turner LITTLER MENDELSON, P.C. dturner@littler.com Ga. Bar No. 719330 Admitted to the Eastern District of Michigan on June 23, 2011 Attorneys for Defendant FCA US LLC

9

AAA would be expressly bound by this Court’s May 24, 2018 Order. The plain language of AAA’s Supplementary Rule 1(c) states: “Whenever a court has, by order, addressed and resolved any matter that would otherwise be decided by an arbitrator under these Supplementary Rules, the arbitrator shall follow the order of the court.” AAA Supp. Rules at 3.

20.

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CERTIFICATE OF SERVICE I hereby certify that on July 3, 2018, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to: Shereef H. Akeel Hasan Kaakarli Michael L. Pitt Megan A. Bonanni Robert W. Palmer Carey S. McGehee Beth M. Rivers

shereef@akeelvalentine.com hasan@akeelvalentine.com mpitt@pittlawpc.com

mbonanni@pittlawpc.com rpalmer@pittlawpc.com cmcgehee@pittlawpc.com brivers@pittlawpc.com /s/Daniel E. Turner Daniel E. Turner Littler Mendelson, PLLC Attorney for Defendant 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326.4803 Phone:404.233.0330 dturner@littler.com Ga. Bar No. 719330 Admitted to the Eastern District of Michigan on June 23, 2011

155521749.15

21.